New Impulses in the Interaction of Law and Religion: A South Pacific Perspective

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1 BYU Law Review Volume 2003 Issue 2 Article New Impulses in the Interaction of Law and Religion: A South Pacific Perspective Don Paterson Follow this and additional works at: Part of the Comparative and Foreign Law Commons, Human Rights Law Commons, and the Religion Law Commons Recommended Citation Don Paterson, New Impulses in the Interaction of Law and Religion: A South Pacific Perspective, 2003 BYU L. Rev. 593 (2003). Available at: This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact hunterlawlibrary@byu.edu.

2 New Impulses in the Interaction of Law and Religion: A South Pacific Perspective Don Paterson I. INTRODUCTION This article will look at the way in which new religions were introduced first from Britain and Europe and then later from the United States of America into all island countries of the South Pacific during the nineteenth century. The next part will examine the extent to which the laws of those countries provide freedom of religion and it will then consider certain legal and sociological limitations upon the actual practice of religion in these same countries. The article will conclude by looking to the future and trying to suggest ways to ease the tension that exists between individual freedom to practice the religion of his or her choice and community concern for preserving peace and harmony in the community. II. HISTORICAL BACKGROUND The islands of the South Pacific first came to the European s attention following the voyages of explorers and traders in the sixteenth century from Portugal (Telez, de Sequeira, and de Meneses) and Spain (Magellan, de Mendana, and de Quiros). 1 Dutch explorers (Schouten, Le Maire, and Tasman) followed in the seventeenth century, 2 and in the eighteenth century came the British explorers (Byron, Wallis, Cartaret, and Cook) 3 and the French explorers (La Perouse, de Bougainville, D Entrecasteaux, and Emeritus Professor of Law, The University of the South Pacific, Port Vila, Vanuatu. 1. See J.C. BEAGLEHOLE, THE EXPLORATION OF THE PACIFIC (3d ed. 1966); see also DAVID & LEONA CRAWFORD, MISSIONARY ADVENTURES IN THE SOUTH PACIFIC (1967). 2. See BEAGLEHOLE, supra note 1, at See id. at

3 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2003 D Urville) 4 so that by the end of the eighteenth century most of the islands in the South Pacific had become known to Europeans. 5 A. Introduction of New Religions When the British explorers brought back information confirming that the newly discovered island countries had native populations who clearly had never heard of Christianity, great excitement erupted in the churches in England. 6 Those churches had recently undergone a great spiritual re-awakening in a movement often referred to as the Great Revival. 7 They were, therefore, very anxious to demonstrate that they would accept and follow, even unto death, Christ s parting command that his followers go forth and preach the holy gospel to the unconverted heathen the Great Commission (Matthew 28:19). 8 Several denominational missionary societies were formed in the late eighteenth century, such as the Baptist Missionary Society, the Church (of England) Missionary Society, 9 and the Wesleyan Methodist Missionary Society. 10 An important non-denominational missionary society was formed in 1795 the Missionary Society, renamed in 1818 the London Missionary Society ( LMS ) and 4. See BEAGLEHOLE, supra note 1, at ; see also CENT. INTELLIGENCE AGENCY, THE WORLD FACTBOOK 2002: FRENCH POLYNESIA, factbook/geos/fp.html (last updated Mar. 19, 2003) ( The French annexed various Polynesian island groups [including French Polynesia] during the 19th century. ); CENT. INTELLIGENCE AGENCY, THE WORLD FACTBOOK 2002: NEW CALEDONIA, (last updated Mar. 19, 2003) (New Caledonia was [s]ettled by both Britain and France during the first half of the 19th century and was made a French possession in ). 5. See generally BEAGLEHOLE, supra note 1; HOWARD VAN TREASE, THE POLITICS OF LAND IN VANUATU: FROM COLONY TO INDEPENDENCE (1987); see also CRAWFORD, supra note 1, at 17 47; Gottfried Oosterwall, Introduction to Part I: Missionaries and Anthropologists, in MISSION, CHURCH, AND SECT IN OCEANIA 31, (James A. Boutilier et al. eds., 1978). 6. See JOHN GARRETT, TO LIVE AMONG THE STARS: CHRISTIAN ORIGINS IN OCEANIA 8 (1982); see also Sione Lātūkefu, The Impact of South Sea Islands Missionaries on Melanesia, in MISSION, CHURCH, AND SECT IN OCEANIA, supra note 5, at 91, See GARRETT, supra note 6, at See id.; James A. Boutilier, We Fear Not the Ultimate Triumph: Factors Effecting the Conversion Phase of Nineteenth-Century Missionary Enterprises, in MISSIONS AND MISSIONARIES IN THE PACIFIC 13, 16 (Char Miller ed., 1985). 9. See generally EUGENE STOCK, THE HISTORY OF THE CHURCH MISSIONARY SOCIETY, ITS ENVIRONMENT, ITS MEN, AND ITS WORK ( ) (four volumes). 10. See generally GEORGE GILLANDERS FINDLAY & WILLIAM WEST HOLDSWORTH, THE HISTORY OF THE WESLEYAN METHODIST MISSIONARY SOCIETY ( ) (five volume historical treatise). 594

4 593] New Impulses in the Interaction of Law and Religion included members from all denominations, particularly from the Congregationalist and Calvinist forms of fundamental Protestantism. 11 Accordingly, the missions set up by the LMS usually followed fundamental Protestant doctrine and practice. The LMS was the first to begin evangelizing, and in 1796 they dispatched the Duff, replete with missionaries, to the South Seas. 12 In 1788, Britain had proclaimed New South Wales, Australia, a colony for the purpose of establishing a penal colony there. 13 At that time, an Anglican clergyman had been appointed to the settlement, so the LMS decided to establish its base at Tahiti in the Society Islands, in eastern Polynesia on the other side of the South Pacific. 14 Tahiti was probably the island in the South Pacific that was best known in England because of Captain Cook s visits in the 1770s to observe the transit of the planet Venus across the face of the sun, 15 because of Cook s return with an islander, Omai who was lionized in London as the archetype of the noble savage 16 and because of the ill-fated voyage in the 1780s of Captain William Bligh in the ship, the Bounty, which culminated in the celebrated mutiny. 17 After initial hardships, the LMS was able to establish a base there, and during the 1830s, its missionaries moved westward across the Pacific to Samoa, Tonga, and the New Hebrides (Vanuatu), where the leading LMS missionary, John Williams, was murdered as he stepped ashore in LMS then moved northward to the Gilbert (Kiribati) and Ellice (Tuvalu) Islands. 19 Several decades later, in the 1870s, LMS missionaries entered Papua, or southern New Guinea, and successfully established a mission there. 20 Much later, Nauru 11. See generally NORMAN GOODALL, A HISTORY OF THE LONDON MISSIONARY SOCIETY, , at 1 14 (1954); 1 RICHARD LOVETT, THE HISTORY OF THE LONDON MISSIONARY SOCIETY , at 3 42 (1899); 2 id. at See 1 LOVETT, supra note 11, at 48; see also GARRETT, supra note 6, at See TRINITY COLL., AUSTRALIA S SETTLEMENT AND EARLY HISTORY, at (last updated Feb. 25, 2003). 14. See 1 LOVETT, supra note 11, at 38 39, 56 57; CHARLES W. FORMAN, THE ISLAND CHURCHES OF THE SOUTH PACIFIC: EMERGENCE IN THE TWENTIETH CENTURY 3 (1982). 15. See BEAGLEHOLE, supra note 1, at 231, See id. at 269, See id. at See 1 LOVETT, supra note 11, at See FORMAN, supra note 14, at 3 4. See generally id. at See 1 LOVETT, supra note 11, at

5 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2003 (which had been informally evangelized in the late nineteenth century by an i-kiribati pastor and then more formally by a missionary sent by the American Board of Commissioners for Foreign Missions) received the services of an LMS mission in 1914, when Nauru came under the control of Britain, Australia, and New Zealand after the expulsion of Germany. 21 In the 1830s, Wesleyan Methodists were able to establish a mission in Tonga where they were successful in converting several very prominent chiefs, including the future ruler of Tonga, Taufa ahau; 22 from there, they moved northwest to Fiji. 23 In the 1880s, the New South Wales and Queensland branches of the Wesleyan Church in Australia were invited by the Australian authorities in Papua, or southern New Guinea, to assist in the Christianization of Papuans, which had previously been undertaken almost solely by LMS missionaries. 24 The Wesleyans established themselves at the eastern end of Papua in the early 1890s. 25 The Presbyterian and Lutheran Churches also evangelized in the South Pacific. Presbyterianism was introduced into New South Wales in the early 1800s and into the far south of New Zealand, Otago, and Southland in the 1840s. 26 It was introduced into the New Hebrides (Vanuatu) in 1848 by a Presbyterian missionary from Nova Scotia, Canada, who, with support from Australia and New Zealand, made a strong impact throughout the southern and central islands of 21. See GARRETT, supra note 6, at ; JOHN GARRETT, FOOTSTEPS IN THE SEA: CHRISTIANITY IN OCEANIA TO WORLD WAR II (1992). 22. See GARRETT, supra note 21, at Today, the predominant religion in Tonga is Christianity and over 30,000 of the nation s inhabitants are members of the Free Wesleyan Church. See CENT. INTELLIGENCE AGENCY, THE WORLD FACTBOOK 2002: TONGA, (last updated Mar. 19, 2003) [hereinafter WORLD FACTBOOK 2002: TONGA]. In fact, the Tonga Constitution implies a constitutional preference for Christianity, mandating that [t]he Sabbath Day shall be kept holy in Tonga and no person shall practise his trade or profession or conduct any commercial undertaking on the Sabbath Day except according to law; and any agreement made or witnessed on that day shall be null and void and of no legal effect. See TONGA CONST. pt. I (Declaration of Rights), cl See GARRETT, supra note 6, at See GARRETT, supra note 21, at 36, 44 51; 1 LOVETT, supra note 11, at See generally 1 A. HAROLD WOOD, OVERSEAS MISSIONS OF THE AUSTRALIAN METHODIST CHURCH (1975). 25. See GARRETT, supra note 6, at ; GARRETT, supra note 21, at See FORMAN, supra note 14, at

6 593] New Impulses in the Interaction of Law and Religion the New Hebrides (Vanuatu). 27 A smaller mission was later established in Fiji. In northern New Guinea, German trading interests had established a firm foothold by the 1880s, and when northern New Guinea was proclaimed a German protectorate in 1884, Lutheran missionaries moved into the protectorate and established significant missions there. 28 The original Lutheran missionaries (Neuendettelsau) were later joined by other forms of Lutheranism (Rhenish or Barmen), but because of doctrinal differences, the German authorities of New Guinea endeavored to ensure that they operated in different areas of New Guinea. 29 In 1788, the Anglican Church (the Church of England) appointed a clergyman to minister to the needs of the penal settlement established in New South Wales, Australia, and a young assistant priest, Samuel Marsden, who was of the evangelistic spirit, joined him in At first, Marsden tried to convert Australian aborigines, but having no success, he decided to establish a mission for the Maori from the neighboring islands of New Zealand. Marsden commenced a New Zealand mission on Christmas Day The Anglican Church in New Zealand was greatly strengthened by the establishment of a diocese there in the early 1840s. 32 The first Anglican bishop of New Zealand, George Augustus Selwyn, who arrived in 1842, was a very active man who believed strongly that missionary work was the business of the church and not of missionary societies. 33 He therefore enthusiastically evangelized throughout New Zealand, but he did not confine his activities to New Zealand. Taking advantage of an error in the official wording of the boundaries of his diocese, he was 27. See 1 J. GRAHAM MILLER, LIVE: A HISTORY OF CHURCH PLANTING IN THE NEW HEBRIDES TO 1880, at 1, (1978); 2 id. (1981); see also GARRETT, supra note 6, at ; BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, INTERNATIONAL RELIGIOUS FREEDOM REPORT 2002, VANUATU, /13915.htm [hereinafter INTERNATIONAL RELIGIOUS FREEDOM REPORT 2002, VANUATU] (noting that [m]issionaries representing several Western churches brought Christianity to the country [of New Hebrides] in the 19th and early 20th centuries ). 28. See FORMAN, supra note 14, at 58 61; GARRETT, supra note 21, at See FORMAN, supra note 14, at See A.T. YARWOOD, SAMUEL MARSDEN: THE GREAT SURVIVOR 7, (1977). 31. See id. at 152, ; see also GARRETT, supra note 6, at See generally GARRETT, supra note 21, at See HENRY WILLIAM TUCKER, MEMOIR OF THE LIFE AND EPISCOPATE OF GEORGE AUGUSTUS SELWYN, D.D. 1 34, (1879). 597

7 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2003 able, with the assistance of the martyred Bishop John Patteson, 34 to extend the influence of the Anglican Church far northwards into the northern New Hebrides (Vanuatu) and the Solomon Islands. 35 In the 1830s, Roman Catholic missionaries of the Marist order arrived in eastern Polynesia and established missions there, and from there they moved northwest to Wallis and Futuna. 36 At much the same time, in the early 1830s, a separate Marist mission was sent to the Western Pacific. It established mission stations in New Caledonia and the New Hebrides (Vanuatu), and, these mission stations spread to Fiji, Samoa, Tonga, and Gilbert Island (Kiribati). 37 In 1885, a separate Roman Catholic mission of the Sacred Heart made its way, after great tribulations, and in the teeth of the Australian colonial authorities disapproval, to Papua (or southern New Guinea) and began establishing missions in what had until then been solely LMS and Methodist territory. 38 Initially, the religious denominations that were introduced into the South Pacific island countries were, understandably, from churches in Britain or Germany, or from the Roman Catholic Church. As the nineteenth century progressed, however, a number of denominations that had evolved in the United States of America also made their entry into the South Pacific. Probably the first of these to appear was that of the Latter-day Saints ( Mormons ). 39 Although only established in the United States in the 1830s, 40 Mormon missionaries appeared in eastern Polynesia in 1846, in New Zealand in 1854, and later in other island countries. 41 The Seventh- 34. For an account of Bishop Patteson s missionary efforts, see CHARLOTTE MARY YONGE, LIFE OF JOHN COLERIDGE PATTESON: MISSIONARY BISHOP OF THE MELANESIAN ISLANDS (1874). 35. See DAVID HILLIARD, GOD S GENTLEMEN: A HISTORY OF THE MELANESIAN MISSION, , at (1978). 36. See GARRETT, supra note 6, at ; RALPH M. WILTGEN, THE FOUNDING OF THE ROMAN CATHOLIC CHURCH IN OCEANIA, , at 68 88, (1981). 37. See id. at See GARRETT, supra note 6, at See generally JEAN BAPTISTE FRANÇOIS POMPALLIER, EARLY HISTORY OF THE CATHOLIC CHURCH IN OCEANIA (1888). 39. See FORMAN, supra note 14, ; GARRETT, supra note 6, at See JAMES B. ALLEN & GLEN M. LEONARD, THE STORY OF THE LATTER-DAY SAINTS 47 (1976). 41. See S. GEORGE ELLSWORTH, ZION IN PARADISE: EARLY MORMONS IN THE SOUTH SEAS 6 7 (1959); ALLEN & LEONARD, supra note 40, at ; see also GARRETT, supra note 21, at 139, , 189, 239, 246,

8 593] New Impulses in the Interaction of Law and Religion day Adventists, who also evolved in the United States in the 1830s, 42 came later to the South Pacific, arriving first on Pitcairn Island in 1883 and then establishing missions in Fiji, Samoa, and Tonga in the 1890s, and in the New Hebrides (Vanuatu) and the Solomon Islands in the early 1900s. 43 Churches of Christ, which had also developed in the eastern states of America in the early 1800s, were introduced into Australia in the 1840s and from there were brought into the New Hebrides (Vanuatu) by indentured New Hebridean laborers returning to their homeland near the end of the century. 44 Smaller numbers of Jehovah s Witnesses, who developed in Pennsylvania in the 1880s, and of Christian Scientists, who had evolved in the early 1800s in Boston, made their way to the South Pacific but did not establish significant missions. 45 Much more significant were missionaries from the Assemblies of God, which were formally established in Arkansas in 1914, who established significant congregations in Fiji and in Vanuatu. 46 Similar pentecostal-type churches, such as the Apostolic Church, the Holiness Fellowship, and the Renewal Ministry, which place emphasis on fundamentalist Christian teaching and on very enthusiastic displays of religious fervor and special personal relationships with God, have also increasingly made their mark in many South Pacific island countries. 47 It remains to mention that indentured laborers, who were recruited from Fiji by colonial authorities in Fiji in the late 42. See generally ARTHUR WHITEFIELD SPALDING, ORIGIN AND HISTORY OF SEVENTH- DAY ADVENTISTS ( ). 43. See FORMAN, supra note 14, at 20 21, 52 54; GARRETT, supra note 21, at 59, 78, 106, 150, 189, 247, See FORMAN, supra note 14, at See id. at See id. at 29 35, 200; see also Don Paterson and Stephen A Zorn, Fiji, in SOUTH PACIFIC ISLANDS LEGAL SYSTEMS (Michael A. Ntumy ed., 1993); also CENT. INTELLIGENCE AGENCY, THE WORLD FACTBOOK 2002: VANUATU, publications/factbook/geos/nh.html (last updated Mar. 19, 2003) [hereinafter WORLD FACTBOOK 2002: VANUATU]; CENT. INTELLIGENCE AGENCY, THE WORLD FACTBOOK 2002: FIJI, (last updated Mar. 19, 2003) [hereinafter WORLD FACTBOOK 2002: FIJI]. Fifty-two percent of the Fijian population subscribes to some type of Christian faith today. Id. Of the remaining forty-eight percent, thirty-eight percent are Hindu (arising mainly from Indian heritage), eight percent are Muslim, and two percent belong to other faiths. See id. 47. See, e.g., J. GRAHAM MILLER, LIVE: A HISTORY OF CHURCH PLANTING IN VANUATU (BOOK THREE) 92 (1985). 599

9 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2003 nineteenth and early twentieth centuries, brought with them their Hindu and Muslim religions. 48 Those who remained in Fiji, and their descendants, have not proselytized, so these religions have largely remained confined to the Indians of Fiji. In very recent years, however, small numbers of Muslim missionaries have appeared in some countries. 49 The Chinese, who have come to set up businesses in most South Pacific island countries, also brought with them their own religions, but they have not sought to proselytize. Thus, their religions have similarly remained confined to Chinese communities and have not touched the indigenous populations of the countries. On the other hand, in very recent times, small numbers of adherents of the Bahai religion, which originated in the 1860s in the country that is now Iraq, have entered some island countries of the South Pacific and are very actively proselytizing among indigenous populations of those countries. 50 Thus by the middle of the twentieth century, the island countries of the South Pacific had been largely evangelized by introduced religious denominations. Forms of Congregationalism, deriving from the LMS, predominated in the Cook Islands, Ellice Island (Tuvalu), Nauru, Western Samoa, and parts of Papua. 51 Methodism predominated in Fiji and Tonga, as well as in other parts of Papua. 52 Anglicanism predominated in the Solomon Islands and the northern New Hebrides (Vanuatu). 53 Presbyterianism predominated in central and the southern New Hebrides (Vanuatu). 54 Roman Catholicism predominated in New Caledonia, Kiribati, Wallis, and Futuna and had strong missions in Fiji and the New Hebrides (Vanuatu). 55 In most countries, there were minorities of Latter-day Saints and Seventh-day Adventists, smaller groupings of other Christian 48. See FORMAN, supra note 14, at 33 35, See id. 50. See id. at See id. at 21 29, See id. at 29, 35, See id. at See id. at See generally J. GRAHAM MILLER, A HISTORY OF CHURCH PLANTING IN THE REPUBLIC OF VANUATU (BOOK FOUR) (1986). 55. See Alan Berman, 1998 and Beyond in New Caledonia: At Freedom s Gate?, 7 PAC. RIM. L. & POL Y J. 1, 11 (1998) (noting that French missionaries converted almost all Kanak [in New Caledonia] to the Protestant and Catholic religions ); FORMAN, supra note 14, at 27, 31, 54,

10 593] New Impulses in the Interaction of Law and Religion denominations from the United States, and some members of other religions from China and, in Fiji, from India. 56 B. Introduction of New Governments While these great changes were occurring in the South Pacific islands at a religious level, there were also momentous changes occurring at a political level. When the missionaries first entered the South Pacific, the countries and communities they encountered were all independent of foreign control, but by the end of the nineteenth century, all of the island countries of the South Pacific had come under the political control of a foreign country either Britain, France, Germany, or the United States of America. 57 Britain began by proclaiming New South Wales a colony in and followed this up by progressively declaring colonies throughout the rest of the Australian continent. 59 In 1840, Britain announced that neighboring New Zealand was also a British colony. 60 Fiji was ceded by its chiefs to a somewhat reluctant Britain in 1874, but in 1884 Britain declared Papua, or southern New Guinea, a protectorate. In the succeeding decade, Britain extended its protection to the Cook Islands, Niue, southern Solomon Islands, Gilbert Island (Kiribati), Ellice Island (Tuvalu), Pitcairn Island, and Tonga. 61 The other great 56. See FORMAN, supra note 14, at For further discussion about the entry of religions from Britain, Europe, and the United States into the island countries of the South Pacific, see GARRETT, supra note 6; GARRETT, supra note 21; TONY SWAIN & GARRY TROMPF, THE RELIGIONS OF OCEANIA (1995). See also Charles Forman, Foreign Missionaries in the Pacific Islands During the Twentieth Century, in MISSION, CHURCH, AND SECT IN OCEANIA, supra note 5, at 36 37, See SOUTH PACIFIC ISLANDS LEGAL SYSTEMS, supra note 46, at xviii; see also CENT. INTELLIGENCE AGENCY, THE WORLD FACTBOOK 2002, publications/factbook/index.html (last visited Mar. 14, 2003) (containing links to web pages containing historical and statistical information about the nations of the world). 58. See PARLIAMENT OF NEW S. WALES, EARLY SETTLEMENT OF NEW SOUTH WALES: , at Pages/PastandPresentEarlyEuropeanSettlementofNewSouthWales (last visited Mar. 14, 2003). 59. See TRINITY COLL., supra note See CENT. INTELLIGENCE AGENCY, THE WORLD FACTBOOK 2002: NEW ZEALAND, (last updated Mar. 18, 2003). 61. See generally DECENTRALISATION IN THE SOUTH PACIFIC (Peter Larmour & Ropate Qalo eds., 1985). The Cook Islands, named after Captain James Cook who sighted them in 1770, became a British protectorate in See CENT. INTELLIGENCE AGENCY, THE WORLD FACTBOOK 2002: COOK ISLANDS, geos/cw.html (last updated Feb. 13, 2003). By 1900, New Zealand exercised administrative 601

11 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2003 European naval power in the early nineteenth century, France, acquired Tahiti and some surrounding islands as a colony in 1842 and proclaimed New Caledonia a colony in 1853 and Wallis and Futuna colonies in Britain and France acted together in 1886 to establish a joint naval commission to maintain peace in the New Hebrides (Vanuatu). This was followed in 1906 by an Anglo- French Convention that brought the archipelago fully under the joint administration of both powers. 63 The nation-state of Germany, which came into being after the Franco-Prussian War ( ), was quick to emulate its rivals, Britain and France, and promptly sought to acquire colonies in the South Pacific, as well as in Africa and Asia. Germany brought northern New Guinea under its control in 1884, 64 Nauru in 1887, 65 and Western Samoa in The same gathering of the great powers of Europe in Berlin in 1900 that confirmed Germany s acquisition of Western Samoa (now known as Samoa) also confirmed the right of the United States of America to control over the islands, and in 1965, the island residents chose to govern themselves in free association with New Zealand. Id.; see also Alan Berman, The Noumea Accords: Emancipation or Colonial Harness?, 36 TEX. INT L L.J. 277, 277 (2001). Similarly, Fiji was a British colony for nearly a century before gaining its independence in See WORLD FACTBOOK 2002: FIJI, supra note 46. Papua New Guinea was divided between Germany and Britain in 1885, Germany taking possession of the northern part of the island and Britain occupying the southern part. See CENT. INTELLIGENCE AGENCY, THE WORLD FACTBOOK 2002: PAPUA NEW GUINEA, (last updated Mar. 19, 2003). Like the Cook Islands, both the Solomon Islands and Tonga were placed under British protectorate as the nineteenth century came to a close. See CENT. INTELLIGENCE AGENCY, THE WORLD FACTBOOK 2002: SOLOMON ISLANDS, publications/factbook/geos/bp.html (last updated Mar. 19, 2003); WORLD FACTBOOK 2002: TONGA, supra note 22. The islands known as the New Hebrides (modern day Vanuatu) were settled by the British and French in the nineteenth century. See WORLD FACTBOOK 2002: VANUATU, supra note See generally SOUTH PACIFIC ISLANDS LEGAL SYSTEMS, supra note 46; DECENTRALISATION IN THE SOUTH PACIFIC, supra note 61; see also supra note See Don Paterson, Vanuatu, in SOUTH PACIFIC ISLANDS LEGAL SYSTEMS, supra note 46, at 365; WORLD FACTBOOK 2002: VANUATU, supra note See John Nonggorr, Papua New Guinea, in SOUTH PACIFIC ISLANDS LEGAL SYSTEMS, supra note 46, at See Tony Deklin, Nauru, in SOUTH PACIFIC ISLANDS LEGAL SYSTEMS, supra note 46, at See C. Guy Powles, Western Samoa, in SOUTH PACIFIC ISLANDS LEGAL SYSTEMS, supra note 46, at 395,

12 593] New Impulses in the Interaction of Law and Religion acquire Eastern Samoa (now known as American Samoa) and the right of Britain to exert control in Tonga. 67 Thus by the end of the nineteenth century, all the previously independent countries of the South Pacific had fallen under the control of Britain, France, Germany, or the United States of America. III. LEGAL FRAMEWORK ALLOWING EXERCISE OF FREEDOM OF RELIGION When Christian missionaries first came to the island countries of the South Pacific, they found communities that were subject solely to the control of their chiefs and elders, who enunciated and applied the customs and traditions of their communities. 68 Customary rules were the sole source of law, and it was for the chiefs and elders to state and apply those customary rules. 69 The missionaries and the religious principles that they introduced were allowed to exist and operate to the extent that they were acceptable to the chiefs and elders of the community. 70 In some cases, they were not acceptable at all, and the missionaries paid for their fortitude with their lives. The noble list of martyrs in the South Pacific is a long one. No doubt, John Williams, who was clubbed to death on Erromango in the New Hebrides (Vanuatu) in 1839; 71 St. 67. See id. at 396; Mary McCormick, American Samoa, in SOUTH PACIFIC ISLANDS LEGAL SYSTEMS, supra note 46, at 443, ; C. Guy Powles, Tonga, in SOUTH PACIFIC ISLANDS LEGAL SYSTEMS, supra note 46, at 135, (Michael A. Ntumy ed., 1993). 68. See Jean G. Zorn, The Republic of the Marshall Islands, in SOUTH PACIFIC ISLANDS LEGAL SYSTEMS, supra note 46, at 100; Isaacus Adzoxornu et al., The Cook Islands, in SOUTH PACIFIC ISLANDS LEGAL SYSTEMS, supra note 46, at 3. See generally DECENTRALISATION IN THE SOUTH PACIFIC, supra note See JENNIFER CORRIN CARE, TESS NEWTON & DON PATERSON, INTRODUCTION TO SOUTH PACIFIC LAW 1 (1999). 70. See Catherine Giraud-Kinley, The Effectiveness of International Law: Sustainable Development in the South Pacific Region, 12 GEO. INT L ENVTL. L. REV. 125, 129 n.10 (1999) ( [C]onflicts have occurred in some Melanesian countries, such as Vanuatu, between the rules of the church and existing practices, such as headhunting, at the time of Western colonization. ); Francis X. Hezel, Indigenization as a Missionary Goal in the Caroline and Marshall Islands, in MISSION, CHURCH, AND SECT IN OCEANIA, supra note 5, at 251, ; James D. Nason, Civilizing the Heathen: Missionaries and Social Change in the Mortlock Islands, in MISSION, CHURCH, AND SECT IN OCEANIA, supra note 5, at 109, See 1 LOVETT, supra note 11, at

13 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2003 Pierre Chanel, who was axed to death on Futuna Island in 1841; 72 and Bishop John Patteson, who was beaten to death on Nukapu in the Solomon Islands in 1871, 73 are the most famous of those who died for their faith, but there were scores of others less well known who suffered a similar fate. 74 If missionaries were successful in establishing themselves, they were sometimes able to bring about significant changes to the customary laws and the application of those laws. Cannibalism, infanticide, polygamy, and the strangling of widows were some of the more notorious practices permitted by many customary laws throughout the South Pacific, which missionaries were often able to reduce, if not eradicate. 75 Kava drinking and erotic dancing were other vices that some missionaries were able to control if not eliminate. 76 In some countries, such as the Cook and Ellice (Tuvalu) Islands, religious leaders were able to attain positions of great authority in the community, second only to the chief, and they were even able to promulgate written laws. 77 Tonga was the only South Pacific island country during the nineteenth century in which the indigenous ruler, King Taufa ahau Tupou, was sufficiently strong to assert his hegemony throughout the whole country and sufficiently conscious of the importance of establishing a firm legal system to promulgate a written constitution (in 1875) and a code of written laws. 78 As the nineteenth century advanced and the South Pacific island countries fell under the control of foreign countries, 79 the colonial administrators did not, as a rule, concern themselves with matters of religion. They did not establish a state religion, nor did they actively promote any religion or denomination. Nor, on the other hand, did they restrict or prohibit the practice of religion. For a short period during the 1920s in Tonga, which had become a protected state of 72. See FORMAN, supra note 14, at See HILLIARD, supra note 35, at See, e.g., id. at 62 66; GARRETT, supra note 6, at 181, , (discussing early missionaries desire to become martyrs). 75. See FORMAN, supra note 14, at See id. at , See Adzoxornu et al., supra note 68, at 3; see also GARRETT, supra note 6, at 27, (noting the influence of Henry Nott, William Ellis, Charles Barff, and John Thomas on the laws of Tahiti, Huahine, and Tonga). 78. See Powles, supra note 67, at ; see also GARRETT, supra note 21, at See supra Part II.B. 604

14 593] New Impulses in the Interaction of Law and Religion Britain (i.e., Britain was responsible for foreign affairs and defense) the Legislative Assembly prohibited the entry of Latter-day Saints missionaries. This ban did not last for long, and it appears that it was more an indirect result of internal rivalries among the indigenous ruling classes of Tonga than of any concerted attack by the Tongan authorities or Britain against a particular branch of religion. 80 In the latter part of the twentieth century, commencing shortly after the end of World War II in 1945, all of the anglophone island countries of the South Pacific, except American Samoa and Pitcairn Island, obtained independence or, in the case of the Cook Islands and Niue, self-governance. 81 Tonga already had a written constitution, but the other countries had not. The departing colonial administrators of Britain, Australia, and New Zealand thought that the island countries should be provided with a written constitution that would function as a basic framework of government to assist these countries on their path of independence or self-governance. 82 Three countries Nauru, Papua New Guinea, and Western Samoa decided that these constitutions would be made by constitutional conventions established in the country and comprised of legislators and community representatives. 83 In the other countries the Cook Islands, 84 Fiji, 85 Kiribati (formerly the Gilbert Islands), 86 Niue, 87 the Solomon Islands, 88 Tuvalu (formerly the Ellice Islands), 89 and Vanuatu (formerly the New Hebrides) 90 the constitutions were 80. See GARRETT, supra note 21, at See FORMAN, supra note 14, at 164. See generally DECENTRALISATION IN THE SOUTH PACIFIC, supra note 61; SOUTH PACIFIC ISLANDS LEGAL SYSTEMS, supra note 46. Self-governance in this context means full power to regulate internal affairs and a large measure, but not total control, of external affairs and defense. 82. See Edward Wolfers, Decentralisation: Meaning, Forms, Objections and Methods, in DECENTRALISATION IN THE SOUTH PACIFIC 1, 1 3 (Peter Larmour & Ropate Qalo eds., 1985). 83. See Deklin, supra note 65, at 145; Nonggorr, supra note 64, at 205; Powles, supra note 66, at Cook Islands Constitution Act, 1964 (N.Z.), amended by the Cook Islands Constitution Amendment Act, 1965 (N.Z.). 85. Fiji Independence Order, 1970 (U.K.). 86. Kiribati Independence Order, 1979 (U.K.). 87. Niue Constitution Act, 1974 (N.Z.). 88. Solomon Islands Independence Order, 1978 (U.K.). 89. Tuvalu Independence Order, 1978 (U.K.). 90. Exchange of Notes Between British and French Foreign Affairs Ministries in London and Paris, BRITISH SERVICE GAZETTE, Nov. 5,

15 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2003 enacted by the departing foreign country as one of its last acts of authority but only after wide consultation among the leaders of the country. 91 All these written constitutions, except those of the Cook Islands and Niue, contained from the outset a part relating to fundamental rights and freedoms. In 1981, the Constitution of the Cook Islands was amended to include a section relating to fundamental rights and freedoms, 92 leaving Niue as the only independent or self-governing island country in the South Pacific that does not contain any express protection of fundamental rights and freedoms in its written constitution. 93 The written constitutions of the South Pacific island countries, including Tonga but not including Niue, all contain a provision that recognizes the right to freedom of conscience and religion. Freedom of conscience and religion is not expressly defined in the constitutions of American Samoa, the Cook Islands, Tonga, and Vanuatu. However, the constitutions of Kiribati, 94 Fiji, 95 Nauru, 96 Papua New Guinea, 97 Samoa, 98 the Solomon Islands 99 and Tuvalu 100 all expressly provide that freedom of religion includes the right to 91. See generally SOUTH PACIFIC ISLANDS LEGAL SYSTEMS, supra note COOK IS. CONST. (Constitution Amendment (No. 9) Act, ) pt. I (Fundamental Human Rights and Freedoms), See NIUE CONST. (Constitution Act of 1974). The Constitution of Niue provided instead by Article 31 that no legislation could be enacted by the Niue Assembly so as to affect the laws relating to criminal offences, arrest, bail, criminal procedure, evidence, extradition, marriage, divorce, affiliation, adoption, maintenance, and affiliation unless the Chief Justice had been invited to comment on the proposed legislation and the comments of the Chief Justice had been placed before the Assembly. This process was apparently considered a sufficient protection for fundamental rights and freedoms and preferable to the inclusion of provisions recognizing fundamental rights and freedoms. See Alison Quentin-Baxter, The Constitutions of Niue and the Marshall Islands: Common Traits and Points of Difference, in PACIFIC CONSTITUTIONS 97, (Peter Sack ed., 1982). Article 31 was repealed in 1992 by the Constitution Amendment (No. 1) Act (1992) (Niue), but no provision was made to recognize fundamental rights and freedoms. 94. KIRIBATI CONST. (Constitution of 1979) ch. II (Protection of Fundamental Rights and Freedoms), FIJI CONST. ch. 4 (Bill of Rights), NAURU CONST. pt. II (Protection of Fundamental Rights and Freedoms), PAPUA N.G. pt. III (Basic Principles of Government), W. SAMOA CONST. pt. II (Fundamental Rights), SOLOM. IS. CONST. ch. II (Protection of Fundamental Rights and Freedoms of the Individual), TUVALU CONST. pt. II (Bill of Rights),

16 593] New Impulses in the Interaction of Law and Religion change religious belief and to worship and observe religious practices, both in private and in public. They go further and acknowledge that freedom of religion also includes the right to teach religion, in private and in public, and to establish teaching institutions which provide religious instruction, although no one can be forced in such institutions to receive instruction or to take part in any religious practice that is not his or her own. 101 All the constitutions, with the exception of Niue, also provide that the principal court of the country, the high court or the supreme court, has jurisdiction to hear complaints of noncompliance with the provisions of the constitution that relate to fundamental rights and freedoms. 102 Thus, it can be said that in all island countries of the South Pacific, except Niue, there is recognition in the written constitutions of the right to freedom of religion and conscience and that this right can be enforced by the principal courts. In practice, this freedom of religion is widely exercised and enjoyed. 103 Looking at each country as a whole, there are, in most countries, many forms of public and private worship, especially on Saturdays and Sundays. There are many churches, and in most countries there are some schools operated by churches. Moreover, there are usually religious observances at public meetings as well as at private meetings of any significance prayers are usually said both at the beginning and also at the end of such meetings. Even when people gather to share a meal, or a bowl of yagona or kava, they usually also offer a religious 101. See, e.g., KIRIBATI CONST. ch. II, 11(2) (3); FIJI CONST. ch. 4, 35(3); W. SAMOA pt. II, See, e.g., FIJI CONST. ch. 4, 41(1) (stating that a person who feels his rights have been violated can apply to the High Court for redress ); VANUATU CONST. ch. 2, pt. I (Fundamental Rights), art. 6 ( The Supreme Court may make such orders, issue such writs and give such directions, including the payment of compensation, as it considers appropriate to enforce the right. ); BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, INTERNATIONAL RELIGIOUS FREEDOM REPORT 2002, SAMOA, at g/drl/rls/irf/2002/13908.htm (released on Oct. 7, 2002) [hereinafter INTERNATIONAL RELIGIOUS FREEDOM REPORT 2002, SAMOA] (noting that the American Samoa constitution and law provide for the protection of the right of religious freedom and effective remedies for violation of that right and noting that [j]udicial remedies are [also] accessible and effective [in American Samoa] ) See, e.g., INTERNATIONAL RELIGIOUS FREEDOM REPORT 2002, VANUATU, supra note 27; INTERNATIONAL RELIGIOUS FREEDOM REPORT 2002, SAMOA, supra note 102; BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, INTERNATIONAL RELIGIOUS FREEDOM REPORT 2002, TONGA, at (Oct. 7, 2002); see also CARE, NEWTON & PATERSON, supra note 69, at

17 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2003 prayer as a grace for the refreshment. So there is much exercise of the right to freedom of conscience and religion throughout the island countries of the South Pacific. IV. LEGAL LIMITS TO THE EXERCISE OF FREEDOM OF RELIGION Having acknowledged that, taken as a whole, each island country of the South Pacific allows for very extensive and widespread practice of religion, it must also be recognized that there are certain limits upon the exercise of the freedom of conscience and religion within each island country. In part, these limits are imposed by the law; in part, they are imposed by the sociological conditions of the countries themselves. This Part will consider the limits upon the exercise of freedom of religion and conscience that derive from the law, which have two sources: the written constitution and legislation. A. Constitutional Limits upon Freedom of Conscience and Religion In all the written constitutions of South Pacific countries that recognize the right to freedom of conscience and religion, the same provisions that recognize that right also place limits on its exercise. The rights and freedoms recognized by the constitutions are not absolute or unlimited but are subject to some limits or restrictions in all countries. These limits are not always expressed in the same words, but they tend to fall into the following five categories: (1) the rights and freedoms of others; (2) the interests of the community; (3) existing laws; (4) existing cultural values; and (5) other limitations on the scope of enforceability of fundamentals rights and freedoms. 1. The rights and freedoms of others The constitutions of the Cook Islands, Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, the Solomon Islands, Tuvalu, and Vanuatu all expressly state that the rights and freedoms of the individual, including the right to freedom of religion, are subject to the rights and freedoms of others. 104 Unfortunately the constitutions 104. See COOK IS. CONST. pt. IVA (Fundamental Human Rights and Freedoms), 64(2); FIJI CONST. ch. 4, 35(4)(a)(i); KIRIBATI CONST. ch. II, 11(6)(b); NAURU CONST. pt. II, 11(4)(b); PAPUA N.G. pt. III, 45(1); W. SAMOA CONST. pt. II, 11(2); SOLOM. IS. CONST. ch. II, 11(6)(b); TUVALU CONST. pt. II, 23(6); VANUATU CONST. ch. 2, pt. II, art

18 593] New Impulses in the Interaction of Law and Religion do not spell out the implications of this limitation. Nor has there been any reported judicial discussion about how the freedom of conscience of the individual relates to the rights and freedoms of others. Presumably, some sort of balancing test must be applied. But, if so, what weight, if any, is to be given to the number of people whose freedoms of conscience are affected? What weight, if any, is to be given to the period of time during which the freedoms of conscience have been exercised or to the fact that the freedom of conscience of some was exercised before the freedom of conscience of others? Furthermore, what weight, if any, is to be given to the relative ages of the persons concerned? To these and other interesting questions that arise from this constitutional requirement that regard must be had to the rights and freedoms of others, no assured answer can be given at this stage. 2. The interests of the community The constitutions of the Cook Islands, Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, the Solomon Islands, Tuvalu, and Vanuatu all recognize that the rights of an individual to freedom of conscience and religion are subject to the interests of the community usually expressed as public security, defense, order, health, welfare, or morality. 105 In Fiji, the constitution adds a public nuisance. 106 In the Constitution of Tonga, the community interest is expressed a little differently, although the general thrust is the same: it shall not be lawful to use this freedom [of religion] to commit evil and licentious acts or under the name of worship to do what is contrary to the law and peace of the land. 107 Usually, the constitutions also state that this limit extends only to such laws as are necessary or reasonable to protect the interests of the community. 108 The Supreme Court of Samoa has emphasized the importance of the words necessary or reasonable. In Sefo v See COOK IS. CONST. pt. IVA, 64(2); FIJI CONST. ch. 4, 35(4)(a)(ii); KIRIBATI CONST. 11(6)(a); NAURU CONST. 11(4)(a); PAPUA N.G. pt. III, 45(1); SOLOM. IS. CONST. ch. II, 11(6)(a); TUVALU CONST. pt. II, 23(6)(a); VANUATU CONST. ch. 2, pt. II, art. 7; W. SAMOA CONST. pt. II, 11(2) FIJI CONST. ch. 4, 35(a)(ii) TONGA CONST. pt. I, cl See, e.g., FIJI CONST. ch 4, 35(4) ( necessary ); KIRIBATI CONST. ch. II, 11(6) ( reasonably required ); W. SAMOA CONST. pt. II, 11(2) ( reasonable ). 609

19 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [2003 Attorney-General, 109 the Supreme Court of Western Samoa held that a customary law made by the chiefs of a village in Samoa that restricted the number of religious denominations in the village to three was unconstitutional because it was in conflict with the fundamental freedom of conscience and because it was not reasonable restriction. 110 Justice Wilson said: Even if it is feared that some unrest or disharmony may result, consent to the establishment of a new church cannot be withheld or insisted upon, if, to do so, infringes a fundamental right guaranteed under the Constitution.... In my judgment, limiting the number of churches in a village is neither a restriction imposed by existing law (a customary law) nor does it impose reasonable restrictions, on the exercise of the right to freedom of religion [affirmed by]... [Article 11(2)]. It is a form of religious intolerance or discrimination on the ground of religion. 111 It is evident from this judgment that the limit of the community interest will not be invoked by the Supreme Court of Samoa unless the new religion or religious denomination is likely to produce more than some unrest or disharmony. It appears that substantial or severe disharmony must be shown to be likely. 3. Existing laws Some constitutions expressly provide that all or some of the fundamental rights and freedoms are subject to (and limited by) existing laws. 112 In other words, fundamental rights act only on future laws, not on laws in existence at the time that the fundamental rights provisions were enacted. Samoa has such a constitution wherein Article 11(1) recognizes the right to freedom of conscience and religion, but Article 11(2) provides that Nothing in clause (1) shall affect the operation of any existing law Sefo v. Attorney-Gen. (Sup. Ct. W. Samoa July 12, 2000), available at Id Id. (first alteration added) See, e.g., W. SAMOA CONST. pt. II, 11(2); PAPUA N.G. CONST. pt. III, 45(1); TONGA CONST. pt. I, cl

20 593] New Impulses in the Interaction of Law and Religion The Cook Islands is another example. In 1985, the Court of Appeals of the Cook Islands held in Clarke v. Karika 113 that there should be implied into the fundamental rights provisions of the constitution, which were inserted by a subsequent amendment in 1981, a limitation that those fundamental rights provisions did not apply to laws in existence at the time that the amending provisions were enacted. 114 In that case, it was argued that an act enacted by the Cook Islands Parliament in 1980, the Rehearing of the Te Puna Lands Act of 1980, was unconstitutional since it contravened the fundamental right to equality before the law along with other fundamental rights and freedoms, which were added to the constitution by an amendment to the constitution which came into force on June 5, The Clarke court upheld the act by holding that the fundamental rights and freedoms introduced by the constitutional amendment of 1981 were to be interpreted as not applying to laws in existence at the time the amendment came into force on June 5, This would have been the outcome even if the court would have considered the act a contravention of the fundamental right to equality to before the law. The effect of such an express or implied provision is obviously to exempt existing laws from the fundamental rights provisions, in particularly the fundamental right to freedom of conscience and religion. In the Sefo case, the defendants argued that this exemption applied so as to exempt a customary practice adopted in some Samoan villages of limiting the number of churches that could operate in the village from the operation of Article 11(1) of the Constitution of Samoa (recognizing the fundamental right to freedom of conscience and religion). 117 Justice Wilson of the Supreme Court of Samoa gave this argument short shrift, holding that this customary practice had not acquired the status of being part of the customary law of Samoa: 113. [1985] LRC (Const.) 732 (Cook Is. 1983) Id See id.; see also COOK IS. CONST. (incorporating the 1981 amendment) See Clarke, [1985] LRC (Const.) See Sefo v. Attorney Gen. (Sup. Ct. W. Samoa July 12, 2000), available at 611